Monday, November 29, 2010

The Rules Committee of the Massachusetts Supreme Judicial Court today published proposed amendments to SJC Rule 1:19, pertaining to cameras in the courts. The proposed amendments are designed, in part, to address the more-varied use of electronic technology in courtrooms, both by traditional media and new media.

The amendments were recommended by the SJC's Judiciary-Media Committee. They were drafted by a subcommittee created to review the current rule and recommend changes in light of advances in technology and journalism since the rule was promulgated.

(I serve on the Judiciary-Media Committee and was on the subcommittee that drafted the proposed rule.)

The proposed revisions change the name of the rule to "Electronic Access to the Courts." They also include an expanded definition of media and a requirement that media register with the Court's Public Information Office. The proposed amendments allow the media to possess and operate electronic devices in the courtroom, subject to certain restrictions. Live blogging from the courtroom generally would be permissible.

The SJC asks that comments be directed to Christine P. Burak, Secretary, Supreme Judicial Court Rules Committee, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before Friday, Jan. 28, 2011. Comments may also be sent by e-mail to christine.burak@sjc.state.ma.us.

Wednesday, November 24, 2010

When I was writing for Law.com's Legal Blog Watch, I wrote several posts (here is one) about the case of Jane Daniel, a Gloucester, Mass., woman who was hit with a $33 million verdict against her and her small publishing company, Mt. Ivy Press. The 2001 verdict was awarded to Misha Defonseca and her ghostwriter Vera Lee as the result of disputes over copyright and promotion of Defonseca's memoir, Misha: A Memoire of the Holocaust Years. The book told the story of how Defonseca survived the Holocaust on her own as a young girl, in part through her "adoption" by a pack of wolves. The book was a bestseller in Europe and was the basis for a film.

Several years later, through the detective work of Daniel and genealogical researcher Sharon Sergeant, documents were unearthed showing Defonseca's tale to be as tall as it seemed. Based on these new revelations, Daniel and Mt. Ivy filed a new lawsuit in 2008 seeking to set aside the $33 million judgment, alleging that Defonseca and ghostwriter Lee had perpetrated a fraud on the court. The trial court judge dismissed the case, concluding that it alleged no "extraordinary circumstances" that would warrant relief.

Today, the Massachusetts Appeals Court reinstated the case, but only against Defonseca. It concluded that, if Daniel is able to prove her allegations at trial, then they constitute "extraordinary fraud."

"The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.

"Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at trial reiterated, and reinforced, her sympathetic but ultimately false tale."

These allegations entitle Daniel to seek relief from the judgment, the Appeals Court said. In addition, the allegations, if true, constitute fraud on the court:

"There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where--as here--the claim is the foundation of a book that the publication, distribution, and marketing of were the subjects of the suit. Defonseca perpetrated this falsehood, and it lay at the center of the case."

As for Lee, the ghostwriter, the Appeals Court said that there is no indication that she knew or had reason to know that Defonseca's memoir was fraudulent. Because there is no evidence that she did anything wrong, there is no basis to lift the judgment in her favor.

The ruling is not the end of the case. Daniel will still have to prove her case in court. Today's decision sends the case back to the trial court and allows it to move forward.

Friday, October 22, 2010

The Open Meeting Law Advisory Commission is meeting Monday, Oct. 25, at 9 a.m., at the Office of the Attorney General, One Ashburton Place, 21st Floor, Boston. The AG has posted the notice of meeting and meeting agenda. The meeting is open to the public.

Sen. Joyce was not able to attend but sent his chief of staff. All the other members were there, as were the staff lawyers from the AG's open governmetn division.

Jonathan Sclarsic of the AG's office kept the official minutes of the meeting, but here is a quick overview of what happened:

Loretta Lillios was elected to serve as chair of the commission for the remainder of 2010.

Britte McBride, the director of the AG's open government division, gave a report on steps taken so far to implement the law. These include promulgation of interim regulations, publication of a new OML Guide, and presentations to a handful of groups, including the members of the legislature and their staffs. A significant portion of the work of the new office so far has been spent fielding questions from citizens and government officials about the new law, she said.

McBride also presented a summary of comments the AG received during its series of public hearings on the emergency regulations.

The committee discussed how we saw our role. We agreed that we would study and discuss various aspects of the law and make recommendations both to the AG and to the legislature. Rep. Walsh indicated that he would work with the committee in filing legislation should we see the need.

McBride said that the AG plans to put out additional requests for comments on various aspects of the new law. The AG also anticipates issuing advisory opinions and perhaps posting an FAQ to provide guidance on key issues under the law.

Our next meeting will be Oct. 22 at 10 a.m. at the AG's offices at One Ashburton Place. One item we agreed to discuss then is whether the AG should allow public officials to participate in meetings remotely, by web conference or other means. (The AG has put out a request for comments on this question.)

Tuesday, September 07, 2010

The Hollywood Reporter legal blog, THR,Esq., has an interesting post about a Chicago lawyer who appears to be singlehandedly trying to do what the RIAA did for the music industry -- file lawsuits to go after anyone who uses peer-to-peer networking to download copyrighted porn.

The lawyer has filed at least a half-dozen lawsuits within the past two weeks targeting hundreds of "John Doe" defendants, accusing them of stealing copyright movies ranging from gay erotica to the cult classic, "Debbie Does Dallas."

The lawyer, John L. Steele, has set up a website as the Media Copyright Group in Chicago. The site advertises that the company "tracks, identifies and pursues damages against people who pirate copyrighted media via P2P networks." THR, Esq. has the lawsuit he filed on behalf of Hard Drive Productions, owner of the website Amateur Allure.

What makes all this even more interesting is that Steele's law firm website utters not a word of any of it or mentions any practice relating to copyright law. Rather, the site describes both the firm and Steele as a family law attorney who also handles consumer bankruptcies.

Steele's not alone in going after porn pirates, says THR, Esq. In Texas, lawyer Evan Stone has filed lawsuits against hundreds of alleged pirates on behalf of film and video companies.

So if you are sharing porn on BitTorrent, watch out for the copyright patrol.

The commission was created as part of the new open meeting law that took effect July 1. Section 19(c) of the law says:

There shall be an open meeting law advisory commission. The commission shall consist of 5 members, 2 of whom shall be the chairmen of the joint committee on state administration and regulatory oversight, 1 of whom shall be the president of the Massachusetts Municipal Association or his designee, 1 of whom shall be the president of the Massachusetts Newspaper Publishers Association or his designee, and 1 of whom shall be the attorney general or his designee.

The commission shall review issues relative to the open meeting law and shall submit to the attorney general recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.

The law also provides that the AG is to report to the commission annually on the enforcement of the open meeting law.

Wednesday, September 01, 2010

Even when public bodies meet behind closed doors, they are required by law to keep minutes. Once the reason for meeting in private no longer exists, the minutes are to be made public.

According to Stacie Galang, a reporter for The Salem News, the Peabody School Committee had "picked up the habit of conducting closed-door meetings without ever releasing those minutes publicly." (I fear this habit is contagious.) So last April, she called and asked for all the executive-session minutes for the last year. She was told they would be released soon.

Tuesday, August 31, 2010

Should members of government boards be allowed to attend meetings without being physically present, using teleconferencing, Web conferencing or some similar technology?

The Attorney General's Division of Open Government is about to take up that question. Today, it issued a request for public comment on remote participation in public meetings. The new open meeting law that took effect July 1 does not directly authorize remote participation, but it does give the AG the discretion to allow remote participation if she so chooses.

The notice issued today requests public comment on whether to allow remote participation. It encourages anyone who submits comments to address these questions:

Should the Attorney General authorize remote participation in meetings by members of public bodies?

If authorized, what, if any, provisions should be adopted to address technical difficulties that may arise during the course of remote participation in a meeting?

If authorized, should limits be placed on the frequency with which members of public bodies may participate remotely in meetings?

If authorized, should limits be placed on the reasons for which a member of a public body may be allowed to participate remotely (i.e. only allow remote participation because of distance, disability or other medical reason, emergency, etc.)?

Currently, roll-call votes are only required in order to go into executive sessions and to make decisions during executive sessions. If authorized, should roll-call votes be required for all votes taken when one or more members are participating remotely?

If authorized, should members participating remotely be required to have access to all documents and other materials used by the public body during a meeting? How should documents be made available?

If authorized, what, if any, requirements should be in place to maintain confidentiality during executive session?

Comments must be submitted by Oct. 1. They should be sent to: Britte McBride, Assistant Attorney General, Division of Open Government, Office of the Attorney General, One Ashburton Place, 20th Floor, Boston, MA 02108, or by e-mail to openmeeting@state.ma.us.

Friday, August 27, 2010

Journalists and citizens seeking to enforce open meeting laws have a new weapon at their disposal: video. In two recent cases in Massachusetts, open meeting law violations caught on tape forced the violators to admit their mistakes.

In a post here in July, I wrote about the reporter for The Patriot Ledger who recorded the Weymouth Housing Authority board as it threatened to forcibly evict citizens who protested an apparent open meeting violation. It appeared that the board met in secret to select a new executive director.

Thanks in part to that videotape as well as to a series of reports by The Patriot Ledger, the Weymouth Housing Authority later rescinded its pick of a new executive director. The board's chairman explained that the board wanted "to clear up any perception of backroom dealing or nefarious activity."

Now comes a similar incident involving the Board of Selectmen of the town of Wayland. Just minutes before the start of their July 8 meeting, the selectmen huddled to discuss appointments to the town's historic and conservation commissions -- appointments they were scheduled to discuss on the record once their formal meeting got underway.

From their pre-meeting discussion, it appears they are reviewing decisions they'd already made about who would get the appointments -- decisions that are required by law to be discussed in public. Later, in their 0n-the-record meeting, they in fact make the appointments consistent with the pre-meeting discusssion.

Unfortunately for them, the town's public access cable TV station, WayCAM, had already started recording. The selectmen can be clearly heard on the recording discussing the candidates.

Remarkably, when a citizen wrote to the selectmen to complain about the violation, the chairman of the board derided the complaint as "borderline harassment." At the selectmen's meeting on July 26, the board discusses the complaint and dismisses it as unfounded. "It's borderline harassment," the chairman says. "I'm getting a little tired of it."

By its next meeting on Aug. 16, the board had become much more contrite, thanks to having viewed the video. At the Aug. 16 meeting, the board admitted its members had acted inappropriately in the July 8 meeting. In a statement, the board said it was "clear that the four [selectmen] were mistaken in referring to some of the candidates who were being considered for appointment that evening."

Below is a short clip of the selectmen's off-the-record discussion. For a longer video showing part of the July 8 and July 26 meetings, click here. To see the video of their Aug. 16 meeting, click here. See also the report from Wicked Local Wayland: Wayland selectmen admit to impropriety.

Friday, August 20, 2010

Three great guests join us on this week's Lawyer2Lawyer podcast to discuss the prison suicide of accused Craigslist killer Philip Markoff and what it means for the case, the victims' families and the criminal justice system.

Thursday, August 12, 2010

I urge you to read Fix weak Open Meeting Law enforcement, an op-ed on SouthCoastToday.com by state Rep. Antonio F.D. Cabral, D-New Bedford. As he points out, the new open meeting law has many strengths, but also a major weakness -- the lack of an effective enforcement mechanism.

Rep. Cabral's opinion is underscored by the fact that he was the primary architect over a number of years of efforts to reform the law. As House chair of the Joint Committee on State Administration and Regulatory Oversight in prior sessions of the legislature, he pushed to give the law more teeth.

Here is part of what he says in the op-ed:

I proposed giving courts the ability to impose larger fines and to impose fines on board members individually. Fines picked up by taxpayers do little to change public officials' behavior. Similarly, I wanted to strengthen private enforcement by allowing courts to force public bodies that violate the law to cover the attorney's fees of those who successfully challenge them.

The new law not only fails to include these improvements, but made it significantly harder for prosecutors to fine rule breakers. For the first time, prosecutors now need to prove not only that a board violated the law, but that the violation was "intentional," a much higher standard and very difficult to prove when speaking about a group of people rather than a single individual.

Thursday, August 05, 2010

Attorney General Martha Coakley's office today held the first of four scheduled public hearings on emergency regulations to implement the new Massachusetts open meeting law that took effect July 1. Turnout was low. My notes show just six people testified. The scheduled three-hour hearing was over after one hour.

Among those who testified were Rosario C. Malone, city clerk of Waltham; Theodora Eaton, town clerk of Needham and president of the Massachusetts Town Clerks' Association; Michael Yunits, Holbrook town administrator; Allison Amanis, acting executive director of the Commonwealth Covenant Fund; Kevin McCrea, former Boston mayoral candidate and advocate for open government; and Marty Rosenthal, a lawyer and co-chair of Brookline PAX.

Although the hearing's focus was the AG's regulations, most of the testimony focused on dissatisfaction with the statute. Obviously, the AG doesn't write the law, it simply carries it out. Of course, going forward, Coakley could be influential in urging the legislature to make "corrections" in the law.

I won't try to recap all the testimony. but the major points addressed were these:

Posting requirement. Clerks remain concerned with the law's requirement that local government bodies post meeting notices in a way that they can be seen by the public 24 hours a day. They call this an "unfunded mandate" in that it may require new technology and more staff time. Oddly, two of the people who testified criticized the regulations for prohibiting the posting of notices on municipal Web sites. In fact, the regulations expressly allow posting on the Web, provided the notice is also posted in a municipal building that is accessible 24/7, such as a police or fire station.

Remote participation. The new law authorizes the AG, "by regulation or letter ruling," to "authorize remote participation by members of a public body not present at the meeting location." The AG's regs are silent on this issue. The AG's Open Meeting Law Guide says the AG is considering this issue but that, for now, remote participation is not allowed. Several of the people who testified urged the AG to address and clarify this issue.

Agenda. The new open meeting law requires meeting notices to include agendas. This was not a requirement of the former law. The town officials who testified believe this could be counterproductive.

Records retention. Any documents used during a meeting subject to the law become public records and must be retained as such. Several town officials objected that this requirement is onerous. This was surprising, given that the former law had pretty much the same requirement. It makes me wonder whether they'd been ignoring this requirement for years.

Filing of complaints. The AG's regulations say that complaints alleging open meeting violations should, for local government bodies, be filed with the municipal clerk. Eaton, the president of the Town Clerks' Association, contended that this is not in accord with the statute, which says the initial complaint shall be filed "with the public body."

McCrea's testimony raised several questions and concerns about how diligent the AG will be in enforcing the law and about carry-over of complaints under the old law that remain unresolved. He echoed concerns I've raised frequently on this blog that the law lacks teeth and needs to be toughened.

Rosenthal suggested that the regs should make better use of technology. In particular, he said Brookline has a listserv to distribute meeting notices and agendas to interested citizens and suggested the AG might consider something similar for other government bodies.

Wednesday, August 04, 2010

Just four months after she named Robert Nasdor as director of the new Division of Open Government, Attorney General Martha Coakley has named someone new to the post, Britte McBride, formerly an assistant AG in the Attorney General's Policy and Government Division.

The change in command comes one month after the AG took over all responsibility for enforcement of the open meeting law on both the state and local levels.

Tomorrow, the AG's office begins a series of four public hearings on regulations to implement her office's new responsibilities.

I spoke briefly today to McBride, who said she was given the director's position due to her background in policy and government, experience that will be highly relevant to the division's work over the coming months.

Tuesday, July 20, 2010

Reporter Sean Murphy has a good overview today in The Boston Globe of some of the issues swirling around the new Massachusetts open meeting law. He quotes me talking about the law's lack of teeth. "The fact that public officials can violate the open meeting law and not face consequences is a travesty," I say in the piece.

Thursday, July 15, 2010

The Attorney General's Office today announced a schedule of public hearings on proposed regulations to implement the new open meeting law that took effect July 1. Hearings will be held Aug. 5 in Boston, Aug. 9 in Worcester, Aug. 10 in Springfield, and Aug. 11 in New Bedford. See the notice for times and locations. Testimony may also be presented in writing, the notice says.

Thursday, July 08, 2010

Should there be tougher penalties against public officials who violate the open meeting and public records laws? The Patriot Ledger is conducting a poll. Head on over and cast your vote.

The poll follows its story and video yesterday depicting a clear violation of the law by the Weymouth Housing Authority. (I blogged it also.)

Regular readers of this blog will know how I voted in the poll. I have long maintained that Massachusetts has one of the weakest open meeting laws in the nation because it lacks teeth. The majority of states impose civil or criminal penalties on public officials who violate the law. In Mass., officials who violate the law face no monetary consequences, even if their violations are intentional and repeated.

Wednesday, July 07, 2010

When a government board makes a hiring decision, it is supposed to do it in public, as required by the state's open meeting law. The law permits a board some leeway to act privately when first screening potential candidates. But by the time the board gets to consideration of the finalists, the public has a right to sit in on that process.

Apparently, this is news to the Weymouth Housing Authority. The Patriot Ledger reports that the authority's board of commissioners made its selection of a new executive director without ever discussing the selection in a public meeting. The board went straight from conducting interviews with finalists to making a final job offer, without ever meeting in public to discuss who it would select from among the candidates and why. This is a clear violation of the law.

When local citizens protested the closed-door meeting at which the board made the job offer, the board threatened to have them forcibly removed. A Patriot Ledger reporter caught the event on videotape:

Monday, July 05, 2010

I wrote in May about local-government officials in Western Massachusetts who asked the district attorney there to decide whether blogging by a public official can violate the open meeting law. Now, The Republican reports that the district attorney's office is referring the matter to Attorney General Martha Coakley, whose office took over exclusive responsibility for enforcement of the open meeting law as of July 1.

Meanwhile, in Framingham, officials are concerned that a public listserv might violate the law, the Metrowest Daily News reports. The listserv, which focuses on local government issues, has some 1,500 members, several of whom are local officials.

As I said in my earlier post, I believe that a blog, as a general rule, would not violate the open meeting law. The danger would be in the comments. The safest solution is simply to turn off comments.

As for the listserv, the answer is that if a majority of members of a board use the listserv to "deliberate" about an issue within their authority, then they're probably running into trouble.

Bloggers rely heavily on maintstream news sources for topics. What obligation does a blogger have to give attribution to an original source? To what extent can a blogger use the content of a news story?

We explore these and related issues with New York Times sports reporter Alan Schwarz this week on the legal-affairs podcast Lawyer2Lawyer. Click the link to download or stream this week's show.

Clearly, local officials aren't pleased. One article quotes Gardner Mayor Mark P. Hawke saying of the law, :It's a solution in search of a problem and it is another unfunded mandate." Another quotes Duxbury Town Clerk Nancy Oates, "It’s idiotic."

One "honoree" of the 13th Annual Muzzle Awards, published today by The Phoenix, is the Massachusetts legislature, cited for playing a shell game with a weak open meeting law. Since I'm quoted in that write-up, I am compelled to point out that the piece didn't get it quite right. I wholeheartedly agree that the legislature side-stepped an opportunity to add "teeth" to the law and even, to a degree, took a step backward. But not precisely as described.

Under the new open meeting law, Dan Kennedy writes, "a public body can no longer be found to have broken the open-meeting law unless there's a ruling that its behavior was 'intentional.'"

That is not correct. No finding of intent is required for the AG to conclude that the law was violated. The "intent" requirement applies to the remedy the AG may impose if she finds a violation.

The law provides various non-monetary remedies the AG is authorized to impose -- order an open meeting, nullify a meeting vote, require attendance at training, and others. It has only one monetary penalty -- a $1,000 fine for an "intentional" violation.

This fine was in the old law, but without the "intentional" requirement. By adding the necessity to prove "intent" under the new law, the legislature made it much harder to impose a fine for an OML violation.

On top of that, the Massachusetts Newspaper Publishers Association, of which I am executive director, has long argued that the $1,000 fine is an inadequate sanction, because it is imposed on the board, as a whole, rather than on any specific individual who violates the law. The net effect of this is that a public official can violate the law, but the taxpayers have to pay the penalty, should one be imposed.

The majority of other states handle this differently. They provide for monetary sanctions directed against the individual members of a board who violate the law. Some states even make it a crime to violate the open meeting law. In the context of individual penalties, the "intent" requirement makes sense, because no one wants to punish innocent mistakes or negligent misunderstandings.

It should be noted that several legislators fought hard to give the OML more teeth, most notably Rep. Antonio F.D. Cabral of New Bedford. It should also be noted that the new enforcement and training powers vested in the AG should result in enhanced compliance with the law, particularly with regard to "innocent" violations.

But as long as public officials face no personal consequences for violating the law, there will always be some who will choose secrecy over public acts, knowing that nothing will happen to them personally. In this case, the Muzzle is deserved, even if there are no teeth to protect against.

The Phoenix is out today with its 13th Annual Muzzle Awards, given out to New England's leading enemies of free speech and personal liberty. The awards are compiled by Dan Kennedy, media blogger and journalism professor. (I'm honored to say Dan cites this blog as a source.)

A sidebar, written by civil rights lawyer Harvey Silverglate, doles out Muzzle awards for censorship on college campuses.

Among those "honored" with Muzzles this year are Boston Police Commissioner Ed Davis, for clamping down on citizens who try to videotape police; 1st U.S. Circuit Court of Appeals Judge Bruce Selya, for his opinion barring webcam streaming of the Joel Tenenbaum file-sharing case; and the Massachusetts legislature, for rewriting the state's open meeting law without giving it the teeth it's long needed.

In an e-mail transmitting the regulations, Coakley said she would seek public comment on the emergency regulations and adopt final regulations no later than Oct. 1, 2010.

"Our office is committed to ensuring that the changes to the OML will provide for greater transparency and clarity -- both of which are hallmarks of good government," Coakley said in the e-mail. "We are focused on providing educational materials, outreach and training sessions to ensure that all stakeholders understand the law and can prevent violations."

The regulations contain provisions that specify:

The procedures for posting meeting notices under the new law.

The procedure for filing complaints of OML violations.

The process by which the AG will investigate and conduct hearings on OML complaints.

The ways in which the AG will resolve complaints, whether before a hearing or after one.

A process for the AG to issue advisory opinions on the OML.

One aspect of the new law I've criticized is its change of the penalty provision to require proof that a violation was "intentional." The statute defines an intentional violation as "an act or omission by a public body or a member thereof, in knowing by violating the open meeting law." (I assume "knowing by violating" was supposed to say "knowingly violating.")

The AG's regulations amplify that slightly, to read as follows:

Intentional Violation means an act or omission by a public body, or a member of a public body, that knowingly violates the OML. Repeated conduct in violation of the OML will be considered evidence of an intentional violation where the body or member has previously been authoritatively advised that the conduct violates the OML.

The specification of "repeated conduct" as evidence of intent makes good sense and provides at least some tangible measure to an often difficult-to-prove standard.

I sympathize with the plight of these local officials. But I don't believe the solution is to delay the law's effective date. The new law was enacted a full year ago. Its effective date was put off for a year precisely so that officials would have time to prepare. If a year wasn't enough time, a few extra months won't make much difference either.

One key to smoothing out the wrinkles in the new law is Attorney General Coakley's office. The AG takes over enforcement of the law as of July 1. The office has taken the position that it has no authority to act under the new law until that date. Once Thursday arrives, I suspect we'll see some quick action from the AG to put out interim regulations and offer answers to some of the questions that are vexing local officials.

Thursday, June 10, 2010

I am looking for examples of written policies or orders issued by courts pertaining to the issuance of media credentials for bloggers and citizen journalists. Any help or suggestions would be greatly appreciated.

John Koblin has a fascinating piece in The New York Observer, The End of Libel? He quotes well-known-media-lawyer after well-known-media-lawyer saying that no one is bringing libel lawsuits anymore. The libel lawyer for Time Inc., Robin Bierstedt, says she is retiring because there are "no more lawsuits." George Freeman, VP and assistant GC at the New York Times, says that, for the first time in his 29 years there, there are no active domestic libel suits. The dean of media lawyers, Floyd Abrams, says he knows of no litigators "who are doing a lot in this area."

If I didn't know which side they were on, I would almost suspect a wisp of nostalgia in their comments, as if an abundance of libel lawsuits represented the good old days.

Why the diminishing number of libel cases? The article attributes it to the glut of information made available via the Internet, the ability of those who feel wronged to disseminate their viewpoints, and the willingness of publications to correct their mistakes.

I am not qualified to quibble with the likes of George Freeman and Floyd Abrams about anything having to do with media law. But I wonder whether libel is dead or merely being redirected towards a different type of publisher. Even if it is true that libel actions against newspapers are dropping, there seems to be an increasing trend to threaten libel actions against bloggers and other types of online publishers and commentators. Perhaps the reason many big-name lawyers are not seeing these cases is that these small-time bloggers can't afford to hire them.

And on the subject of the death of libel, I would love to hear what Howard M. Cooper would have to say. Cooper is the lawyer who has made a national name for himself as the go-to advocate in libel matters, particularly when the subject of the alleged libel is a judge. As The Boston Globe recently said, "Get me Howard Cooper" has become the rallying cry for judges from the Virgin Islands to New Hampshire who feel they have been libeled by media outlets.

If libel lawsuits are down for some, libel business is clearly on the upswing up for Cooper, and not just on behalf of judges. Earlier this year, he represented Tom Scholz of the band Boston in a libel matter.

My sense is -- to paraphrase Mark Twain -- that reports of the death of libel are greatly exaggerated.

Monday, June 07, 2010

If you don't subscribe to The Week in Media Law, you're missing out on one of the best ways to stay on top of developments in media law throughout the United States. Every Friday, this e-newsletter rounds up dozens of links from media blogs and news sources pertaining to key issues in free speech, defamation, FOI, technology, IP, and reporting.

Tuesday, June 01, 2010

A city may not withhold records based on the reason (or lack of reason) for the request or the identity of the person making the request.

It would seem the city of Lawrence was unaware of either of these points, based on its response to a records request filed by the Boston Herald. As the Herald's Joe Dwinell relates, when the paper asked for the city's payroll, the city delayed its response for two months.

Even better is why the city delayed. According to the city attorney, the city has "a lot of enemies" and he had to check to make sure none of them were behind the request.

This is the first I've heard of an "enemies exemption" under the public records law.

Five concerned School Committee chiefs are investigating whether blog postings written by public officials and the often-anonymous threads that follow them somehow violate the state's Open Meeting Law.

On May 18, the leaders of all the Amherst-area school boards - Shutesbury's Michael DeChiara, Amherst's Irv Rhodes, Leverett's Kip Fonsh and Farshid Hajir, and Pelham's Tracey Farnham - sent a letter to the Northwestern district attorney's office seeking a legal opinion on the matter.

I am quoted in the article, saying this:

In my view, the danger is not the blog, but the comments. If other committee members - enough to equal a quorum - post comments to the blog on the same issue, the sum of their comments could be considered a open meeting violation. In my opinion, the only safe course for a school committee member who wants to write a blog is to turn off the comments.

Whatever comes of this, these school committee officials should be commended for their foresight in recognizing the potential for a problem and seeking legal guidance. (Read their letter here.) That said, my belief is that the DA should defer the question to the Attorney General's Office.

In a month, on July 1, the AG takes over all enforcement and interpretation of the open meeting law and the DA will no longer be involved. One of the rationales for this move is to bring consistency to the law's application throughout the state. This is clearly a question of statewide relevance and one that the AG should address, if anyone.

Tuesday, May 25, 2010

I posted here recently about how cities and towns in Massachusetts are struggling to figure out how they will comply with the 24/7 notice-posting requirement of the state's new open meeting law, which takes effect July 1. The new law requires that notices of meetings be posted "in a manner conspicuously visible to the public at all hours."

Given that municipal buildings are not open at all hours, this would seem to require the notices be posted outside. A simple weatherproof bulletin board would work fine for small towns with few meetings, but larger cities and towns with many scheduled meetings could face problems complying with the law.

Recently, the new Division of Open Government in the Attorney General's office invited public comment on a Notice Posting Proposal suggesting alternative posting methods, including posting on the Web or on local-access TV.

Now, a small Massachusetts company is proposing another alternative, an outdoor, weatherproof, digital display that automatically shows all scheduled meetings and their agendas. The company, Minuteman Digital, was started by the father-son duo of Harry and Ben Forsdick.

What they offer is actually two products. One is the live-display hardware equipped with an Internet connection to transmit the data to the display. The other is proprietary event-listing software that uses a municipality's existing calendar system to send information to the display.

They sell the service as an annual subscription. The municipality can buy the display through Minuteman or provide its own. The basic first-year package (without the display) starts at $900 and the subscription after the first year is $600.

Monday, May 10, 2010

As I've noted here before, the new open meeting law that takes effect in Massachusetts on July 1 requires cities and towns to post meeting notices "in a manner conspicuously visible to the public at all hours." That 24/7 posting requirement has many local government officials concerned about how they will comply. Recently, the new Division of Open Government in the Attorney General's office invited public comment on a Notice Posting Proposal suggesting alternative posting methods.

Yesterday in The Republican in Springfield, State House reporter Dan Ring reported on this issue. Many local officials, he writes, are hoping that the AG decides that meeting notices need be posted only on local-government Web sites to comply with the law.

My fear is that Web-only notice will be insufficient to reach all citizens. Several recent studies say that a third of citizens still lack Internet access. Even those who do have access use it primarily for e-mail. They do not spend their days surfing local government Web sites in search of meeting notices.

There is another alternative that has withstood the test of time. I filed comments with the AG on behalf of the Massachusetts Newspaper Publishers Association suggesting that these notices be published in local newspapers. As it turns out, many cities and town already publish at least some of their meeting notices in newspapers. Newspapers are the established outlet for publication of government and official notices. I suspect the best way to reach the maximum number of people is to employ some combination of print and electronic notice.

Friday, May 07, 2010

Journalists in Canada have no special constitutional protection against being required to reveal their sources, the Supreme Court of Canada ruled today. However, courts may shield a journalist's source if the public interest in granting such protection outweighs the public interest in investigating a crime, the court said.

Thursday, May 06, 2010

Effective July 1, Massachusetts Attorney General Martha Coakley's office will be exclusively responsible for enforcing the state's open meeting law. Formerly, the AG enforced the law with regard to state-government entities and district attorneys enforced it with regard to local-government entities.

Coakley and Robert Nasdor, the newly appointed chief of the AG's new Division of Open Government, published a post yesterday at the New England First Amendment Center offering a preview of things to come. They say they will focus on providing training and educational resources to government officials to enhance their understanding of the law. They also say they are developing a comprehensive Web site devoted to the new law.

The new law authorizes the AG's office to issue binding interpretations of its application to specific sets of facts, they note. They say they also plan to issue procedural and substantive regulations to fill in any gaps in the statute.

Finally, they invite anyone with questions or suggestions about the new law to contact them at openmeeting@state.ma.us.

Monday, April 26, 2010

Reporter Tom Scheffey has an interesting story in the Connecticut Law Tribune about a public-records fight over psychiatric records of Civil War soldiers.

A professor and a graduate student at Central Connecticut State University wanted access to the records in connection with the student's research for his thesis involving post-traumatic stress disorder.

The state fought the request, citing a psychiatrist-patient privilege enacted in Connecticut in 1969. The professor and his student fought back, arguing that the privilege was not intended to be applied retroactively, and won a ruling from the state Freedom of Information Commission ordering release of the records.

In a post at the New England First Amendment Center, Tom Zuppa, assistant managing editor at The Sun in Lowell, tells about his paper's fight to get access to records of a police internal-affairs investigation in Tyngsboro, Mass. The kicker is that even though town officials knew the law required them to release the documents, they held onto them because they had agreed with police not to release them unless ordered to do so by the attorney general or secretary of state. "In other words," Zuppa writes, "the town and police made a deal to follow the law only if compelled."

Thursday, April 15, 2010

The U.S. District Court in Massachusetts is proposing a rule change that would allow cameras in federal courtrooms. The proposed rule would expressly authorize judges to permit the transmission of court proceedings by broadcast and via the Internet.

The proposal is a response to the decision of the 1st U.S. Circuit Court of Appeals in In re Sony BMG Music Entertainment, where the appeals court ruled that the District Court's current rule blocked U.S. District Judge Nancy Gertner from allowing a music-download case to be webcast.

The proposed changes to the rule would still prohibit cameras in most instances. It would give judges discretion to permit cameras and to place "such limitations and restrictions" on their use as the judge deems appropriate. The rule would also authorize the judge to place restrictions on the use and additional dissemination of the broadcast.

In any case where cameras are allowed, the rule would prohibit them from showing jurors. The rule would allow witnesses and litigants to opt out of being photographed. Also prohibited would be use of cameras to capture sidebar conferences with the judge or discussions between lawyers and their clients.

The court is accepting public comment on the proposed rule until tomorrow, April 16, after which it will decide whether to adopt it.

Monday, April 12, 2010

The new open meeting law that takes effect in Massachusetts on July 1 requires municipalities to post meeting notices "in a manner conspicuously visible to the public at all hours." Given that public buildings are generally not open "at all hours," some municipalities are concerned about how they will comply.

In an effort to address this issue before the law takes effect, the new Division of Open Government in the Attorney General's office has issued a Notice Posting Proposal suggesting alternative posting methods. It is inviting the public to comment on the proposal, with a requirement that comments be submitted by April 23.

"An outdoor, weather-proof bulletin board would seem the most obvious means" for a municipality to comply with the law, the notice says. But many municipalities are concerned "about their practical ability to post numerous meeting notices outdoors."

The AG is proposing four alternative methods:

Posting notices on the town Web site and posting in or on an alternate town building (e.g., police or fire station) where the notice would be visible at all hours.

Posting notices on cable television and posting in or on an alternate town building (e.g., police or fire station) where the notice would be visible at all hours.

Placing a computer monitor or electronic bulletin board in a door or window of the municipal building in such a manner as to be visible to the public (including the disabled) from outside the building.

Providing an audio recording of meeting notices, available to the public by telephone at all hours.

I would suggest a fifth alternative that is time-tested, available at all hours, and proven to be effective as a means of disseminating public notices: Publication of the notice in the local newspaper.

If you wish to comment on the proposed alternatives, submit them by April 23 to: Robert A. Nasdor, Director, Division of Open Government, Office of Attorney General, One Ashburton Place, 20th Floor, Boston, MA 02108, or by e-mail to: openmeeting@state.ma.us.

Kudos to Susan, who says she has no intention to reveal Marty's true identity. To her credit, she invited Town Counsel Aldo Cipriano to contribute a post to her blog telling his side of the story. Cipriano declined.

Let's hope Southborough officials come to realize that criticism comes with the job. A lawsuit would be a waste of taxpayer dollars and would serve no good end. The only basis for such a suit would be libel and nothing about this situation would appear to warrant a libel case. And absent a strong showing of libelous harm, courts are unlikely to force a blog owner to reveal the identity of an anonymous commenter.

Susan summed up the situation well when she wrote that free speech isn't always pretty. "In any community there will be people whose opinions make your blood boil," she said. "It’s true of this town, and it’s true of this blog. But how different it would be if selectmen saw this site as a place to engage with their community instead of making it 'us versus them.'"

Attorney General Martha Coakley announced yesterday that she has named lawyer Robert Nasdor to be director of the new Division of Open Government. The new division within the AG's office was created as part of a major overhaul of the state's open meeting law that goes into effect on July 1. Most notably, the new law consolidates open meeting enforcement under the AG, removing district attorneys from the role they had enforcing the law against local government entities.

Nasdor, who started in his new job last week, most recently worked as legal director at the National Center on Homelessness & Poverty in Washington, D.C. From 1997 to 2005, he was executive director of the Legal Assistance Corporation of Central Massachusetts.

Coakley's announcement also says that she will focus on ramping up training and educational resources for public officials who are subject to the open meeting law. She plans to develop a comprehensive Web site devoted to the law and also conduct in-person, regional training sessions.

Monday, March 29, 2010

Many in Massachusetts do not realize that the legislature has exempted itself from the open meeting law. While most state and local boards and committees are required by law to conduct their business in public, the legislature has no such requirement.

Two bills that would have changed that have effectively been killed. Both have been ordered to be sent to study committees, which generally means the bills will see no further action for the remainder of the legislative session.

The two bills were:

House 3496, filed by Rep. Jennifer M. Callahan, a Democrat who represents the 18th Worcester district. Her bill would have applied the open meeting law to the legislature and also would have required the legislature to publish advance notices of committee hearings in at least two newspapers.

House 1118, filed by Rep. Thomas M. Stanley, a Democrat who represents the 9th Middlesex district. His bill would have included the legislature within the provisions of the open meeting law.

It would seem that what's good for the goose is not so good for the gander.

Thursday, March 25, 2010

The Massachusetts legislature's Joint Committee on the Judiciary has extended to May 7 the date by which it must report for or against a shield bill that would protect journalists' confidential sources. March 17 was the deadline for the committee to issue a report on the bill, but an extension order gives the committee until May 7.

The bill, House Bill 1650, would prohibit courts and government agencies from forcing members of the news media to reveal their news sources. The bill would also protect reporters against the compelled disclosure of notes, outtakes, photographs and recordings.

If you register today, the cost of the conference is $225. After today, it goes up to $275. The price includes course materials and lunch. The seminar marks the CMLP's recent launch of the Online Media Legal Network.

Monday, March 22, 2010

The Supreme Judicial Court's Judiciary-Media Committee is sponsoring a half-day program on Friday, March 26, on the judiciary and the news media. The program takes place at the John Adams Courthouse in Boston, from 8:30 a.m. to 2:30 p.m.

A Massachusetts bill that would ban the news media from reporting the names of minors who appear in a broadcast or photograph appears unlikely to pass this session.

The bill, Senate 1669, would prohibit the media from using minors' names without first obtaining the express, written consent of the minor's parent or guardian. Last week, the legislature's Joint Committee on the Judiciary referred the bill to a study committee, which generally means the bill is unlikely to be resurrected during the current legislative session.

As you can imagine, such a law would severely inhibit the media's reporting on school sports and other such events. It would also be unconstitutional. On behalf of the Massachusetts Newspaper Publishers Association, I had submitted testimony opposing this bill when it came up for a hearing last July.

Sunday, March 21, 2010

That is the question raised in this article in The Republican today. The Springfield School Committee is spending the weekend at a resort in the Berkshires for a training program led by a group called the Center for Reform of School Systems.

The district attorney gave the gathering a green light. Strictly speaking, the "retreat" would not violate the open meeting law, provided -- and this is an important proviso -- the group engages in no deliberations. The law defines "deliberation" as "a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction."

In my opinion, the school committee is treading on dangerous turf here. If they are huddled together over the course of a couple days, with a facilitator whose agenda is school reform, discussing this all day, sharing cocktails and meals in the evenings, it seems highly unlikely that they can avoid discussing school policy and business. If they cross that line, and discuss matters within their decision-making purview, then they have violated the law, in my opinion.

Friday, March 19, 2010

The Plymouth County district attorney's office has found that selectmen in Rockland, Mass., violated the open meeting law in the process of hiring a full-time accountant, The Patriot Ledger reports. A town accountant search committee also violated the law.

Thursday, March 18, 2010

On Beacon Hill and in municipal buildings across the state, government officials are getting the message that e-mail can be a double-edged sword, writes State House reporter Dan Ring in The Republican of Springfield.

"The state's Open Meeting Law requires that meetings of governmental boards and committees be conducted in sessions open to the public, with few exceptions which are strictly limited. The goal of the law is to eliminate as much of the secrecy around discussions and decisions of public policy, by requiring that discussion to be done in a public meeting.

"Amendments to the Open Meeting Law have been made many times since it was first adopted in 1958, most recently last July when Gov. Deval Patrick signed the ethics, lobbying and campaign finance reform bill that included changes to the Open Meeting Law. The changes, some of which are substantial, are scheduled to go into effect July 1."

Wednesday, March 17, 2010

A former Superior Court judge in the U.S. Virgin Islands won a $240,000 libel verdict this week against the Virgin Islands Daily News. The former judge, Leon Kendall, was represented in the lawsuit by Howard Cooper, the Boston lawyer who in 2005 won a $2.1 million verdict against The Boston Herald for former Massachusetts Superior Court Judge Ernest Murphy.

According to a report today in The Daily News, the jury on St. Thomas returned the verdict Tuesday. Jurors found that the newspaper and one of its reporters damaged Kendall's reputation through a series of 16 news stories and an editorial published from 2005 to 2009.

The stories related to Kendall's work as a judge and bail rulings he made. The editorial called for his resignation. Kendall retired from the bench last year.

Thursday, February 18, 2010

Massachusetts remains one of the minority of states without a shield law to protect journalists' confidential sources. That could change if a bill to be heard by the legislature next week becomes law. The bill, House Bill 1650, would prohibit courts and government agencies from forcing members of the news media to reveal their news sources. The bill would also protect reporters against the compelled disclosure of notes, outtakes, photographs and recordings.

The bill is under review by the legislature's Joint Committee on the Judiciary, which has scheduled it for a public hearing on Tuesday, Feb. 23, at 1 p.m. in State House Room B1. If you have any interest in supporting this bill, you should show up and make your position known to the members of the committee.

Notably, the bill as drafted would cover some bloggers as well as traditional print and broadcast journalists. Coverage is not based on a journalist's employment, but on the journalist's engagement in "bona fide news gathering" for any form of news media. "News media" is defined as "any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution."

Thus, a blogger who is engaged in news gathering and who regularly gathers and disseminates news would be covered by the bill if it became law.

This bill is derived from one that was filed in the previous session of the legislature and that I helped draft as part of an ad hoc coalition of journalists, news organizations and media lawyers. That bill died without ever being reported out of the Judiciary Committee.

Wednesday, February 17, 2010

The Massachusetts Supreme Judicial Court issued an important decision today underscoring the right of the public and the press to sit in on jury selection in criminal cases. The opinion, Commonwealth v. Cohen, concludes that even a partial closure of the courtroom -- with some family members and non-parties allowed in -- can violate both the First Amendment rights of the public and press and the Sixth Amendment rights of the defendant.

The public trial right applies to jury selection proceedings ... which are "a crucial part of any criminal case." ... At that stage, "the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." ... The "sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." ... Throughout a trial, an open court room "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." ... Thus, courts recognize a "strong presumption in favor of a public trial," ... "overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The case arose out of jury empanelment in the criminal prosecution of David M. Cohen, an attorney and former Stoughton, Mass., police sergeant. On the fourth day of empanelment, Cohen's defense counsel noticed a sign on the courtroom door that said, "Jury empanelment. Do not enter." After learning that the sign had been on the door throughout the empanelment process, the lawyer moved for a mistrial. The judge denied the motion. The lawyer repeated his motion for a mistrial later the same day, after learning that members of the public were removed from the courtroom. Again, the judge denied the motion.

"The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right," the SJC concluded. Finding that there would be no other way to remedy the violation, the court ordered that Cohen be granted a new trial.

As a member of the Judiciary/Media Committee and in my capacity as executive director of the Massachusetts Newspaper Publishers Association, I am helping to disseminate the survey and compile its results. If you are a journalist who covers the Massachusetts courts, please take a moment to complete the survey and return it to me.

Thursday, January 28, 2010

Although various groups have lobbied for a reporters' shield law in Massachusetts, the state remains without one. But in 2005, just a year after he was elected to the state Senate, U.S. Sen.-elect Scott Brown made an aborted attempt to change that.

As the Senate took up debate on the state budget on May 23, 2005, Brown and former Sen. Brian P. Lees, then the Senate's Republican leader, proposed a reporters' shield law as a budget amendment. But by the end of the first day of budget debate, they had withdrawn the proposed law. No explanation was ever given for why they filed the bill so suddenly or why they withdrew it just as quickly.

Titled the "Free Flow of Information Act," the bill would have prevented the state from compelling a reporter to testify except in narrow circumstances. It would have absolutely prohibited the state from forcing reporters to disclose confidential sources.

Brown never refiled the bill, but he did sign on as a sponsor of a shield bill drafted by a coalition of media representatives and filed in 2007. That bill died in committee. Two Senate shield bills have been filed in the current session of the legislature, SB 1673 and SB 1574. Brown did not sign on as a cosponsor of either.

When last I counted, Massachusetts was one of 16 states without a shield law.

Thursday, January 07, 2010

The Supreme Judicial Court today issued a major ruling for members of the news media, affirming a broad immunity from libel for journalists who report fairly and accurately on official government actions and statements. The opinion in Howell v. Enterprise dismisses a defamation suit brought by a former employee of the town of Abington against The Enterprise newspaper in Brockton after it reported that he had used town computers to access pornography.

In affirming the applicability of the fair report privilege, the opinion by Justice Robert J. Cordy said, "[I]t is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation," and that courts should take "an expansive but not unlimited view" of what qualifies as an official action covered by the privilege. Applying these principles, the SJC concluded that the actions at issue in this case qualified as official.

"[W]e conclude that the articles appearing in the Enterprise reported on official actions, proceedings, and statements. The May 11 article reported that Howell had been placed on administrative leave. This was official action. When the Enterprise published articles on the sewer commission hearing (July 20 article), Howell's termination after a sewer commission vote (August 3 article), and the board hearing (August 24 article, August 25 article, September 17 article, September 19 article), it reported on official actions and proceedings. The statements and actions reported plainly implicated official duties and powers, either in the context of the official hearings or in the exercise of official powers as a result of the evidence adduced at those hearings. The Enterprise's reliance on anonymous sources did not destroy the privilege because the sources described official action. Similarly, that some of the actions were not public is not problematic: the actions were 'governmental' and 'formal.'"

Having decided that the news reports covered official matters, the SJC next considered whether the reports were fair and accurate. In making this determination, Justice Cordy wrote, the court must be:

"on alert for two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair). We examine both through the lens of the reasonable recipient of the report to gauge the substantiality of the report's accuracy and fairness. This is, for lack of a better formulation, best described as a fairness overlay to the fair and accurate inquiries: is the report sufficiently factually incorrect or sufficiently mischaracterized that the impression on the reader is so unfair to the plaintiff as to warrant placing it outside the privilege? We note this because our task in the present case involves a combination of errors of 'accuracy' and 'fairness.'"

The SJC goes on to conclude that the bulk of the reports met both prongs -- that they were both fair and substantially accurate. One statement in one article was inaccurate, the SJC found, but lacked the requisite element of malice that would be required to prove defamation against Howell as a public figure in his town.

In another notable aspect of today's opinion, the SJC reversed the Appeals Court and said that Howell could not sue for intentional infliction of emotional distress. The Appeals Court had said that he could sue for such damages, even if the news reports were true.

Justice Francis X. Spina dissented to one aspect of today's opinion, saying he would not apply the fair report privilege to a story that provided details of a closed-door town meeting. "The policy behind permitting a governmental body to consider the discipline of a public employee in executive session and to extend the secrecy of those proceedings until the process is concluded, or for other valid reasons, is good government. ... A newspaper that publishes such detail before the governmental body releases its records to the public cannot be said to be acting in its public supervision role."